Hands off diaries

August 23, 1994|By William Safire

Washington -- LIKE EVERYONE else, I smacked my lips at the revelations in a young U.S. Treasury Department aide's diary of the president being "furious" at a friend's decision to remove himself from the Whitewater line of fire.

Like everyone else, I derided the aide's ludicrous attempts to wriggle away from his written record -- as, for example, in his description of a high official's attempt to deceive a Senate committee with half-truths as "gracefully ducking" questions.

And like everybody else, I missed the central point of the exercise: What right does Congress -- or the cops, for that matter -- have to pry into anybody's personal diary?

The diarist, Joshua Steiner, showed in one entry the fear now felt by anyone in public life who dares express private thoughts in a personal journal: "Been battling w/ the RTC/Madison. Wrote two pages about what's been going on, suddenly realized that I could be subpoenaed like [Sen. Bob] Packwood and the most innocuous comments could be taken out of context. So on that subject, nothing."

In the pursuit of wrongdoing, we are doing wrong. Under the guise of enforcing ethics, well-meaning zealots in Congress have fixed their eyes on hitherto inviolate private diaries; by so doing, they are undermining our Fourth Amendment right to protection against unreasonable search and seizure and Fifth Amendment protection against self-incrimination.

This despite the court's 1977 decision that of the 42 million pages of documents and 880 tapes seized from Richard Nixon, the Dictabelts he dictated each evening constituted a private diary that had to be returned to him forthwith. Because the Supreme Court in 1984 stripped away Fifth Amendment protection for business records, the diary snoopers now argue that any thoughts that we have written down can be used against us.

We need not be absolutist on the sanctity of what the French call le journal intime; if police can show grounds for suspicion that a terrorist's diary contains plans to blow up a building, a judge can reasonably order it examined.

But in the case that chilled Josh Steiner into writing "on that subject, nothing" -- U.S. Senate v. Packwood -- Judge Thomas Jackson ruled that the Ethics Committee's interest in maintaining "public confidence in the Senate as an institution" made its search for any kind of misconduct, regardless of relevance to the original charges, "reasonable."

This gave staffers license to rummage through thousands of pages of the intimate details of five years of Sen. Packwood's life, fishing for anything that could be used against him on any subject.

That outrageous ruling, obtained by an Ethics Committee more intent on satisfying a few soreheads than on protecting every American's privacy, set the precedent that has turned Washington into an open city for diary snoops.

It's not as if diaries represented irrefutable evidence. Rarely does the diarist put down exactly what he heard immediately afterward; more often, it's a first-draft impression of what he thinks happened. When Mr. Steiner writes "Harold and George then called to say that BC was furious," how do we know that Harold Ickes and George Stephanopoulos had just seen the president blowing up? Hearsay.

Though always self-serving and often too sloppy to be evidence, diaries of public officials help us estimate "how it really was." I once drew together the diary entries of three Lincoln Cabinet members, plus the raw notes of the Secretary of War and the diary of his portrait painter, to get a rough idea of what really happened in the Cabinet meeting of July 22, 1862, when the Emancipation Proclamation was discussed.

Such primary sources about administrations to come are being denied us by Congress. Asked by a sympathetic inquisitor after his ordeal if he was still keeping a diary, the young Clinton diarist breathed, "No, sir." Everybody laughed.

Historians aren't laughing. Ordinary people who buy the five million blank diaries sold every year aren't laughing.

All of us -- muckrakers, solons and would-be diarists -- should take a serious look at the rush to break the seal of the self-confessional. Just as our home is our castle, our mind is our citadel of privacy -- and so should be our mind's most intimate expressions in a personal diary.